A summary of the case:

The fire department in New Haven, Connecticut, used a standard test to choose which firefighters to promote to lieutenant and captain. In one round of testing, 19 white employees and one Hispanic employee passed. No black firefighters passed the test.

According to the employer’s policy, the 20 employees who passed should have been promoted. But, viewing the test as biased against the black employees — and fearing a lawsuit from them — management scrapped the results and based the promotions on other factors.

In a classic case of “you’re damned if you, you’re damned if you don’t,” the department was hit with a lawsuit — from the 20 employees who passed the test and weren’t promoted. They claimed they mere most qualified for the jobs — according to the department’s policy — but weren’t promoted because of their race.

Two lower courts threw the case out before the Supreme Court reversed.

What does it mean to HR?

The case has gotten a lot of attention, mostly because the decision overturns one made by High Court nominee Sonia Sotomayor. But what does it mean for HR pros?

The Court’s ruling stressed two points:

1. Employers do need to be careful about using selection procedures that have a disparate impact against a protected class, but
2. It’s not just a numbers game — if a test is job-related and consistent with business necessity, there’s no reason to suddenly change a selection procedure based on how many people of a certain race, gender, religion, etc., pass.

So basically if the test is legal, employers should stay consistent, rather than using the results in some instances and not in others.

Of course, few employers base hiring and promotion decisions solely on one thing, so deciding whether or not to scrap a test’s results likely wouldn’t have as big an impact as it did for the New Haven fire department.

But the case does contain a general lesson managers should be reminded of: Fear of being sued by members of one protected class is not a defense for discriminating against another.

Cite: Ricci v. DeStefano

As HR pros know, using pre-employment tests that have an adverse impact on a protected class can get companies dragged into court. But here’s some news: Trying to avoid a disparate impact can get you in trouble, too.

That’s what happened to the fire department in New Haven, Connecticut, which argued its case before the Supreme Court yesterday.

The department used a test to choose candidates for promotions to captain and lieutenant. The employees with the highest scores — and therefore those who would’ve been promoted — were all Caucasian.

But those employees weren’t selected. The scores excluded several African-American and Hispanic employees who applied for promotions. Believing the test was biased, management decided to throw out the results and base the decisions on other factors.

However, in trying to avoid one legal problem, the fire department got hit with another: 20 white applicants sued, claiming they would have been promoted if the test counted. By tossing the results, they said, the department was discriminating against them because of their race.

Two courts disagreed and threw the case out. Companies are obligated to make sure tests are unbiased, the courts ruled, so the fire department couldn’t be held liable ignore a selection procedure it believed was against the law.

The story didn’t end there. The employees appealed and the case is now being heard by the Supreme Court.

The early word after arguments were heard yesterday: Opinion is split between the Court’s liberal and conservative blocs, the Hartford Courant reports.

Justice Antonin Scalia remarked that “setting aside a test because one race prevails” is essentially making a race-based decision. On the other side, Justice David Souter said the fire department faced a “damned if you do, damned if you don’t situation.”

The result of the case could have a big impact on how companies need to evaluate pre-employment tests. We’ll keep you posted.

What do you think? Should the fire department have used the test results in its decisions on who to promote? Tell us what you think in the comments section below.

For many jobs, a pre-employment test of physical or cognitive skills can help the company hire only the best applicants. But when companies aren’t careful, those tests can lead to big legal trouble.

The biggest challenge for employers is avoiding claims that a hiring procedure has a “disparate impact” on a certain group. Even a test that doesn’t directly discriminate can get the company in trouble if it rejects a disproportionate number of members in a protected class.

Last year, FedEx had to pay a $55 million settlement after using tests that had a disparate impact on minority applicants.

How can companies stay safe? Tests are fine as long as companies can prove they’re “job related and consistent with business necessity” and no non-discriminatory alternative is available, according to the EEOC.

HR can also take these steps to avoid legal mistakes in pre-employment testing:

1. Keep the tests up-to-date — Technology is changing the way many jobs are done, and some skills are no longer necessary. The tests must be changed as the jobs do.
2. Don’t always use the same tests for different jobs — Jobs may be similar but not exactly the same. If the necessary skill sets are different, different tests should be used.
3. Beware of education requirements — Many companies require a high school diploma for a lot of positions. But lawyers warn against the practice, saying it might be hard to prove a diploma’s necessary for some menial jobs.
4. Track statistics — To avoid a disparate impact, companies can keep track of the effect a test has on different applicant groups. Also, some companies hire consultants to have selection procedures professionally validated.
5. Don’t put blind faith in a purchased test — When buying pre-made tests, it’s important to get documentation that the test has been validated. But, the EEOC says, companies are still on the hook for making sure those tests don’t create a disparate impact when they’re used.